Washington — Not so long ago, when a US judge quoted foreign law in a decision to interpret the Constitution, conservatives found it annoying.
For example, Judge Antonin Scalia wrote a fierce opposition when the Supreme Court considered the international tendency to abolish the death penalty for boys in a 2005 ruling. “The basic premise of the court’s claim that American law should comply with the laws of other parts of the world should be unruly rejected,” he wrote.
Justice also accused his colleagues of opportunism and hypocrisy. In other areas of law, he wrote, courts ignored criminal procedures, religion, and conservative foreign decisions, especially regarding abortion. “It is a sophistry, not a rational decision, to invoke the Alien Law when you agree with your thoughts and otherwise ignore it,” Scalia wrote.
Mississippi lawmakers seemed to have a different view in 2018 when they enacted a law banning most abortions 15 weeks later.
With the first legislative discovery to justify the law, its drafters sought help abroad. “The United States is one of only seven countries in the world that allows on-demand non-therapeutic or selective abortion after 20 weeks of gestation,” the study said. “In fact, completely 75% of all countries do not allow abortion after 12 weeks of gestation, except (in most cases) saving lives and maintaining the physical health of the mother.”
The law was a calculated challenge to the Roe v. Wade case. The 1973 decision established the constitutional right to abortion and banned the state from banning abortion before the fetal viability, or about 23 or 24 weeks. The Supreme Court will hear a debate in December to challenge the law.
Parliamentarians’ statements about foreign practices generally seem correct. The 2017 Washington Post Fact Check column confirmed most of the first column. “This statistic seemed suspicious at first, as only seven of the 198 countries seemed extreme to allow selective abortion after 20 weeks of gestation,” he said. “But if you dig deeper, the data support your claim.”
Mary Ziegler, a law professor at Florida State University, said 12 weeks is a common nominal limit, although social conditions are usually quite different.
“Most parts of the world have public health insurance for about 12 weeks,” she said. “They are paying for it. If you want to have an abortion in the first 12 weeks, there is no real reason you can’t.”
Martha F. Davis, a law professor at Northeastern University, added that restrictions are usually a serious exception for patients who require a later abortion.
“Many countries, but not all, have the cutoff that they are feasible on paper, not our closest companion,” she said. “But they make so many exceptions that allow abortion much more freely.”
At his confirmation hearing in 2005, Judge John G. Roberts Jr. questioned the use of foreign law in US constitutional proceedings, stating that it must be selective.
“In foreign law, you can find whatever you want,” he said. “Looking at foreign law for help is like looking over the crowd and choosing friends.”
In a Supreme Court summary document, Mississippi officials focused on the country’s enemies. “The United States has found itself in Chinese and North Korean companies as some of the only countries that allow selective abortion after 20 weeks of gestation,” Brief said.
Abortion provider lawyers who challenge Mississippi law have asked the court to consider other countries.
“In countries with legitimate traditions and democratic values most comparable to the United States, such as the United Kingdom and Canada, abortion is legal, at least until it becomes feasible,” they write. “And many countries with early pregnancy restrictions continue to allow abortion for a wide range of social and health reasons, and functionally allow abortion in late pregnancy.”
Brief, a courtmate in the duel in the Mississippi proceedings, also supported Judge Roberts’ observations of selectivity.
In one brief explanation, a professor of international law in support of Mississippi law said, “In France, Italy, Germany, Spain, Norway and Switzerland, the pregnancy limit for abortion on demand is 14 weeks or earlier, and restricted medicine. We allow later exceptions only for good reason. ” Simple citation data collected by Center for Reproductive Rights.
Meanwhile, a brief explanation from another international and comparative law scholar in support of Mississippi’s abortion providers has a legal tradition similar to that of the United States, especially Canada, New Zealand and the United Kingdom, “allowing abortion. We focused on the countries that said. Up to or around feasibility. “
“These countries also support abortion rights and reproductive decisions through universal insurance, access to abortion services and access to contraception, beyond widely accepted legislation,” said Brief. I have.
The report added that recent international trends are moving towards easier access to abortion, with more than 50 countries liberalizing legislation in the last 25 years. In contrast, Brief overturned Roe, “as one of the few countries in the last two decades moving towards greater restrictions on legal access to abortion, countries like Poland and Nicaragua. Will join the company. “
Professor Ziegler said that recent conservative attention to foreign countries is artificial, with a limit of about 12 weeks.
“People who oppose abortion are dishonest about this because they haven’t proposed 12 weeks,” she said. “They are proposing 6 weeks or fertilization.”